Andrade-Garcia v. Lynch

• Citation: 828 F.3d 829
• Decision Date: 09 March 2016
• Docket Number: No. 13-74115,13-74115
• Parties: Nelson Andrade–Garcia, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

828 F.3d 829

Nelson Andrade–Garcia, Petitioner

v.Loretta E. Lynch, Attorney General, Respondent.

No. 13-74115

United States Court of Appeals, Ninth Circuit.

Submitted March 9, 2016* Pasadena, California

Marina Alexandrovich, Marina Alexandrovich, Esq., PLLC., Tempe, Arizona, for Petitioner.

Joyce R. Branda, Acting Assistant Attorney General, Civil Division; Blair T. O'Connor, Assistant Director; Scott M. Marconda, Trial Attorney; Office of Immigration Litigation, Washington, D.C., for Respondent.

Before: Richard R. Clifton and Sandra S. Ikuta, Circuit Judges, and Frederic Block,^*** Senior District Judge.

ORDER

The opinion filed April 29, 2016, is hereby amended as follows: the last sentence on page 11 and continuing to page 12 of the slip opinion should be removed and replaced with the following:

Although Congress has indicated its intent to delegate discretionary authority to the Attorney General to make visa and parole decisions,⁴ see, e.g. , 8 U.S.C. § 1229

(initiation of removal proceedings); id. § 1229a (removal proceedings); id. §§ 1158, 1229b (relief from removal), Congress limited the Executive's discretion to impose a reinstated order of removal by precluding the Executive Branch from deporting aliens “to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture” and requiring the Executive Branch to promulgate regulations to implement this obligation under CAT, see FARRA, Pub. L. No. 105–277, Div. G., Title XXII, § 2242(b), 112 Stat. 2681–822 (Oct. 21, 1998); see also 8 C.F.R. §§ 208.18, 1208.18. An alien with a reinstated removal order may be eligible for other forms of relief as well, including withholding of removal. See

Fernandez

–

Vargas , 548 U.S. at 35 n.4, 126 S.Ct. 2422.

With the foregoing amendment to the opinion, Respondent's petition for panel rehearing is DENIED . No further petitions for rehearing or rehearing en banc will be entertained from this amendment.

OPINION

IKUTA

, Circuit Judge:

Nelson Andrade-Garcia petitions for review of the immigration judge's determination, in a reasonable fear proceeding, that he lacked a reasonable fear of torture and therefore is not entitled to relief under the Convention Against Torture (CAT) from his reinstated removal order. We have jurisdiction under 8 U.S.C. § 1252(a)(1)

. See

Ortiz

–

Alfaro v. Holder , 694 F.3d 955, 958 (9th Cir. 2012). Contrary to the government's argument, our review of the immigration judge's determination is not limited to the question whether it was “facially legitimate and bona fide.” Kleindienst v. Mandel , 408 U.S. 753, 769, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). Rather, we review the decision for substantial evidence and now deny the petition.

I

The Immigration and Nationality Act (INA) provides for the expedited removal of an alien who was previously subject to a removal order but returned illegally to the United States. Under 8 U.S.C. § 1231(a)(5)

, if the government “finds that an alien has reentered the United States illegally” after being removed or departing under a removal order, “the prior order of removal is reinstated from its original date.” Id.¹ In determining whether the alien may be removed under the reinstated order, an immigration officer must make three findings: (1) that the alien is subject to a prior order of removal, (2) that the alien is in fact the alien who was previously removed or voluntarily departed, and (3) that the alien unlawfully reentered the United States. 8 C.F.R. § 241.8(a).

If the immigration officer determines that the alien is properly subject to the reinstated removal order, the plain language of the statute precludes relief. See 8 U.S.C. § 1231(a)(5)

(stating that the reinstated removal order “is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under [the INA], and the alien shall be removed under the prior order at any time after the reentry”). Despite this language, aliens are not barred from all relief. Given Congress's subsequent ratification of CAT, see Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), Pub. L. No. 105–277, Div. G., Title XXII, § 2242(b), 112 Stat. 2681–822 (Oct. 21, 1998); see also 8 C.F.R. §§ 208.18, 1208.18,² the Executive may not remove an alien subject to a reinstated removal order if it is more likely than not that the alien will be tortured in the country of removal. See

Ortiz

–

Alfaro , 694 F.3d at 956 n.1 (assuming without deciding that an alien subject to a reinstated removal order may receive relief under CAT). Further, the Supreme Court has noted that an illegally returning alien subject to a removal order may seek withholding of removal under 8 U.S.C. § 1231(b)(3)(A), “[n]otwithstanding the absolute terms in which the bar on relief is stated” in § 1231(a)(5).

Fernan dez – Vargas v. Gonzales , 548 U.S. 30, 35 n.4, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006)

.

Because an alien subject to a reinstated removal order may be able to obtain CAT protection or other withholding of removal if eligible, the government has promulgated regulations providing administrative review of these claims. Under 8 C.F.R. § 241.8(e)

, if an alien “expresses a fear of returning to the country designated” in the reinstated order of removal, the alien must be “immediately referred to an asylum officer for an interview to determine whether the alien has a reasonable fear of persecution or torture.” If the asylum officer concludes that the alien has demonstrated “a reasonable possibility that he or she would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion, or a reasonable possibility that he or she would be tortured in the country of removal,” 8 C.F.R. §§ 208.31(c), 1208.31(c), the asylum officer must refer the case to an immigration judge (IJ), see

id. §§ 208.31(e), 1208.31(e). These provisions are intended to give aliens subject to a reinstated removal order under § 1231(a)(5) the opportunity to seek withholding of removal and protection under CAT. See 8 C.F.R. § 241.8(e) (providing an exception to the immediate reinstatement of a removal order to allow an alien to seek withholding of removal); id. § 208.16 (providing for withholding of removal under 8 U.S.C. § 1231(b)(3)(B) and CAT); see also Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8485 (Feb. 19, 1999) (stating that the “new reasonable fear of persecution or torture screening process will ensure proper consideration of applications for withholding under [§ 1231(b)(3) ] and under the Convention Against Torture, and of deferral of removal when appropriate, in cases subject to reinstatement of a previous removal order”).

The alien may appeal an asylum officer's determination that there is not a reasonable possibility of persecution or torture to an IJ. 8 C.F.R. §§ 208.31(f)–(g)

, 1208.31(f)–(g). If the IJ concurs with the asylum officer's conclusion, the alien may not appeal the decision to the Board of Immigration Appeals. Id. §§ 208.31(g)(1), 1208.31(g)(1). If the IJ disagrees with the asylum officer, the IJ must give the alien a full hearing on the merits of the alien's withholding or CAT claim. Id. §§ 208.31(g)(2), 1208.31(g)(2).

II

Nelson Andrade-Garcia is a native and citizen of Guatemala who entered the United States illegally in 1998, 2005, and 2013. He was apprehended and ordered removed on June 19, 2013, and was removed a day later.

Two weeks later, on July 4, 2013, Andrade-Garcia reentered the United States again and was apprehended near the border. He conceded that he entered the country illegally and admitted that he had previously been removed pursuant to a removal order. The government issued him a notice of intent to reinstate the prior removal order. Andrade-Garcia expressed a fear of returning to Guatemala, so the government referred his case to an asylum officer for a reasonable fear hearing.

At the hearing, Andrade-Garcia testified that he had decided to return to the United States to avoid paying the members of a Guatemalan gang the 50,000 quetzals (about $6,500) that they demanded in phone calls to him. He stated he was afraid to return because the gang members had threatened to shoot him and cut off his arm. He believed this threat because they had killed his aunt three years before for not paying the money they demanded. Andrade-Garcia testified that the police had investigated his aunt's murder, but his cousin decided “not to do anything because she was already dead and they thought that they would not find anything out.” In response to the asylum officer's questions, Andrade-Garcia testified that he had not been physically harmed, nor had he suffered any psychological or emotional harm. He also testified that he would not be harmed because of his religion, political opinion, membership in any group or organization, or family relationships. Further, he testified that his parents, wife, and children remained in Guatemala and had not been physically harmed or threatened. Although Andrade-Garcia stated that he did not know of any connection between the gang members and the Guatemalan government, he speculated that the gang members are able to influence the police because the Guatemalan government is corrupt and he had seen cases where a robber is caught and then released the same day after bribing the police.

The asylum officer determined that Andrade-Garcia failed to demonstrate either a reasonable fear of future persecution on account of a protected ground or a reasonable fear of torture. On appeal, the IJ concurred with the asylum officer's determination. The IJ ruled that Andrade-Garcia failed to demonstrate a reasonable possibility of past or future persecution on account of a protected ground and did not demonstrate a reasonable possibility of future torture under CAT because he did not establish torture by the government or torture inflicted with the government's acquiescence.

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